Supreme Court Will Hear Case on Two-Member NLRB Decisions

Yesterday, the Supreme Court announced that it has agreed to decide an issue that has had the Courts of Appeals tied up in knots: whether decisions issued by only two members of the National Labor Relations Board (which has five members at full strength) are valid. (The case the Court will decide is called New Process Steel v. National Labor Relations Board; you can find the petition for certiorari -- the brief lawyers must file arguing that the Supreme Court should hear the case -- here.)

The National Labor Relations Board, or NLRB, has had only two members since the end of 2007. President Obama has nominated three new members, who are awaiting a floor vote in the Senate. Meanwhile, the two members of the NLRB have issued hundreds of decisions in representation and unfair labor practices cases. And, now that the Supreme Court has agreed to decide whether two members may act for the NLRB, the outcome of all of those cases may once again be in doubt.

The case turns on the NLRB's authority to delegate its powers to a smaller group, and how large that smaller group must be. The National Labor Relations Act, which created the NLRB, allows the full Board to delegate any of its powers to a group of at least three members (a quorum). The Act also says that two members may constitute a quorum on issues that the full Board delegates to a three-member group. For those of us who skipped the student council and model U.N. meetings, all this talk of delegations and quorums can numb the brain. But the issue boils down to this: Can the NLRB act with only two members or does it need at least three? Or, as the petition for certiorari put it more dramatically, "Does the NLRB exist?"

The federal Courts of Appeal have split on the issue. In fact, the Seventh Circuit Court of Appeals and the D.C. Circuit issued decisions on the same day, reaching opposite conclusions. The NLRB should be back at full strength by the end of this year, but the Supreme Court's decision will determine whether almost two years worth of NLRB cases should be upheld or thrown out. There's a lot at stake, in other words.